An Empirical Study of Sentencing for the Offence of Insider Trading in Taiwan

• Main Authors: Guo-Dong Wang, 王國棟
• Other Authors: Chung-Hsing Huang
• Format: Others
• Language: zh-TW
• Published: 2018
• Online Access: http://ndltd.ncl.edu.tw/handle/brhzj4

碩士 === 國立臺灣大學 === 商學組 === 107 === Insider trading is regarded as one of the so-called white-collar crimes, and more often than not, white-collar criminals use their best efforts to escape punishment by resorting to sophisticated means and shrewdness in using their social status and solid financial resources, or use litigation skills to obtain lighter sentences or even probation, thus freeing themselves from prison. Consequently, social justice is not served. In order to severely punish insider trading, the Government has repeatedly raised the statutory penalties or imposed higher fines through a series of amendments. However, if, after the implementation of heavier penalties, the requisite elements of the offence are not clear enough, the court will be even more cautious towards serving out a harsher sentence, hence increasing the likelihood of taking even more time for conviction and sentencing. Besides, in many cases, a sentence of no more than two years, along with an ensuing probation, is obtained due to confession during investigations and repaying criminal proceeds, thereby leading to an extremely low rate of imprisonment for insider trading. It remains to be observed whether this policy of heavier punishment can effectively deter such crimes. Determining criminal facts and meting out penalties are regarded as the two most important issues in criminal trials, which are also the specific means of realizing the state''s penal power. Whether sentencing is appropriate or not is a key indicator of the effectiveness of a state''s human rights and the rule of law. The differences in sentencing that affect the appropriateness of the sentencing vary from country to country because of the different conditions and legal systems among various nations. Nevertheless, it is a universal problem for the judiciaries of all nations, so is it a central issue in judicial reform. It should be an important task of sentencing reform to establish a set of localized sentencing guidelines that can pass the scrutiny of scientific methodology by means of borrowing or following the legal systems of other countries while integrating the current states of our legal system and various resources. This article introduces the normative purpose of insider trading and the penalties with respect thereto. It considers the implementation of the legal systems of various nations in regards to insider trading and the sentencing, as well as the current status of the actual operation of the insider trading and sentencing legal system in our country. Also, from the practical point of view, 30 final judgments concerning the offence of insider trading have been collected during the past 10 years as samples in analyzing the current situation of the judges'' sentencing and setting the factors that may have affected the sentencing regarding the offence of insider trading. A brainstorming symposium among such experts as law professors, judges and prosecutors is then held to come up with the 9 major considerations regarding the sentencing for the offence of insider trading. The sequence of these sentencing factors are determined by random sampling method, with the chain method being adopted in designing and completing the questionnaire so as to understand the respective proportion for each sentencing factor, hence serving as a reference for the judges'' future sentencing. A brief description of each chapter is summarized as follows: The first chapter is the introduction, which explains the research background, motive, scope, purpose and method of this thesis. The second chapter mainly introduces the normative purpose of insider trading and penalties, as well as the principles for sentencing, such as commensurate guilt and liability, bar from double evaluation, proportionality, equality, individualization and independence. The third chapter introduces foreign legal systems regarding insider trading and sentencing, expounding the legal systems of insider trading and sentencing in the United States, Britain, Germany and Japan. The fourth chapter explains the current situation of our country''s insider trading and sentencing system, and explains the specific contents of the respective abstract sentencing criteria stipulated in Article 57 of the Criminal Code of R.O.C. while clarifying the dubious interpretations as to the specific reasons in practical sentencing evaluation. The fifth chapter is an empirical analysis of the offence of insider trading, which, through analyzing 30 conclusive judgments regarding the offence of insider trading, is intended to understand the current situation of sentencing, select the main sentencing factors, and then to understand the proportions of the various sentencing factors through discussions with such experts as law professors, judges and prosecutors. The sixth chapter contains conclusions and recommendations. Through the analyses and discussions presented in the previous chapters, the conclusions of this research thesis are summarized and the recommendations put forward, intending to construct a reference guideline for sentencing that is more appropriate and suitable for our country''s national conditions.